> ---------- > From: Donald E. Eastlake 3rd[SMTP:[EMAIL PROTECTED]] > Sent: Wednesday, August 08, 2001 6:29 AM > To: [EMAIL PROTECTED] > Subject: FWD: Rebels in Black Robes Recoil at Surveillance of > Computers > > <http://www.nytimes.com/2001/08/08/national/08COUR.html> > > August 8, 2001 > > Rebels in Black Robes Recoil at Surveillance of Computers > By NEIL A. LEWIS > > WASHINGTON, Aug. 7 -- A group of federal employees who believed that > the monitoring of their office computers was a major violation of > their privacy recently staged an insurrection, disabling the software > used to check on them and suggesting that the monitoring was illegal > and unethical. > > This was not just a random bunch of bureaucrats but a group of federal > judges who are still engaged in a dispute with the office in > Washington that administers the judicial branch and that had installed > the software to detect downloading of music, streaming video and > pornography. > > It is a conflict that reflects the anxiety of workers at all levels at > a time when technology allows any employer to examine each keystroke > made on an office computer. In this case, the concern over the loss of > privacy comes from the very individuals, federal judges, who will > shape the rules of the new information era. > > The insurrection took root this spring in the United States Court of > Appeals for the Ninth Circuit, based in San Francisco and the largest > of the nation's 12 regional circuits, covering 9 Western states and > two territories. The Judicial Conference of the United States, the > ultimate governing body of the courts, is to meet on Sept. 11 to > resolve the matter. > > The conflict between the circuit judges and the Administrative Office > of the Courts, a small bureaucracy in Washington, deteriorated to a > point that a council of the circuit's appeals and district judges > ordered their technology staff to disconnect the monitoring program on > May 24 for a week until a temporary compromise was reached. Because > the Ninth Circuit's was also linked to the Eighth and Tenth Circuits, > the shutdown affected about a third of the country and about 10,000 > court employees, including more than 700 active and semiretired > judges. > > Leonidas Ralph Mecham, who runs the Administrative Office of the > Courts, and who ordered the monitoring of all federal court workers, > said in a March 5 memorandum that the software was to enhance security > and reduce computer use that was not related to judicial work and that > was clogging the system. A survey by his office, he wrote, "has > revealed that as much as 3 to 7 percent of the judiciary browser's > traffic consists of streaming media such as radio and video > broadcasts, which are unlikely to relate to official business." > > Officials in the judicial branch on both sides of the issue provided > several internal memorandums written as the dispute continued over the > weeks. > > After the shutdown, Mr. Mecham complained in a memorandum that > disconnecting the software was irresponsible and might have resulted > in security breaches, allowing unauthorized outsiders access to the > judiciary's internal confidential computer network. "The weeklong > shutdown put the entire judiciary's data communication network at > risk," he wrote on June 15. > > Mr. Mecham warned in that memorandum that on the days before the > software was disabled, there were hundreds of attempts at intrusion > into the judiciary's network from places like China and Iran. > > But Chief Judge Mary Schroeder of the Ninth Circuit responded that the > concerns were overblown and that the circuit's technical people > carefully monitored computer activity during the week that the > software was disabled. > > In a June 29 memorandum, she said that there was no evidence that the > electronic firewall used to block hacking had been breached and > suggested that Mr. Mecham had exaggerated the potential of a security > breach because having hundreds of attempted breaches per day was > routine and routinely blocked. > > The Ninth Circuit disconnected the software, she wrote, because the > monitoring policy was not driven by concern over overloading the > system but Mr. Mecham's concern over "content detection." Many > employees had been disciplined, she noted, because the software turned > up evidence of such things as viewing pornography, although they had > not been given any clear notice of the court's computer use policy. > > Moreover, she wrote, the judiciary may have violated the law. > > "We are concerned about the propriety and even the legality of > monitoring Internet usage," she wrote. Her memorandum said that the > judiciary could be liable to lawsuits and damages because the software > might have violated the Electronic Communications Privacy Act of 1986, > which imposes civil and criminal liability on any person who > intentionally intercepts "any wire, oral or electronic communication." > > She noted that the Ninth Circuit had ruled just this year that the law > was violated when an employer accessed an employee Web site. In fact, > the issues of what is permissible by employers have produced a > patchwork of legal rulings and the matter has never been addressed > directly by the Supreme Court. > > Judge Alex Kozinski, a member of the Ninth Circuit appeals court, > drafted and distributed an 18-page legal memorandum arguing that the > monitoring was a violation of anti- wiretap statute. > > Judge Kozinski, widely known for his libertarian views, said the court > employees who were disciplined, an estimated three dozen, could be > entitled to monetary damages if they brought a lawsuit. > > A spokesman for Mr. Mecham said that the software could not identify > specific employees but workstations. When unauthorized use was > detected, Mr. Mecham's deputy, Clarence Lee Jr., wrote to the chief > judge of the district, urging that the employee who used the > workstation be identified and disciplined. One such letter includes an > appendix listing the Web sites that employee had visited, some of them > pornographic. There is no evidence that any alleged abuse of the > system involved judges. > > Judge Kozinski said: "Aside from my view that this may be a felony, it > is something that we as federal judges have jurisdiction to > consider. We have to pass on this very kind of conduct in the private > sphere." > > Prof. Jeffrey Rosen of the George Washington University Law School, > author of a recent book on privacy, "The Unwanted Gaze" (Vintage > 2001), said, "It's fascinating that the courts have to grapple with > these issues so close to home." The law is evolving, he said, adding: > "This drama with the judges reminds us of how thin the privacy > protections are. There's a real choice right now whether e-mail and > Web browsing should be regarded like the telephone or a postcard." > > Judge Edwin L. Nelson, who is chairman of a judges' committee that > deals with computer issues, said in an interview that his group met > last week and drafted proposals to deal with monitoring. Judge Nelson > would not discuss the proposals but they are almost certain to > resemble policies used in the rest of the federal government, in which > clear notice is given to computer users that they may be monitored. > > Jim Flyzik, vice chairman of an interagency group that considers > computer privacy issues in the federal government, said that each > department had its own policy but that clear and unambiguous > notification of monitoring was usually an element. > > In the private sector, a survey by the American Management Association > this year found that 63 percent of companies monitored employees' > computer use.
